Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

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WND Still on…Flag Burning? Really?

Of all the things to continue to be obsessed about, flag burning? Seriously? Yep. The Worldnutdaily apparently still thinks it matters and they’ve published an inane and inaccurate column by Maj. Gen. Patrick Brady to rail against the incredibly rare practice that was protected by the Supreme Court. Brady’s legal and historical arguments are about what one would expect from someone who knows nothing about either subject.

In 1989, in response to a flag burning by an avowed communist, the Supreme Court by one vote declared that burning the American flag was constitutionally protected speech. They did this despite overwhelming constitutional evidence to the contrary, an outcry from three-fourths of the people and the legislatures of all 50 states – not to mention James Madison the author of the Constitution and his friend Thomas Jefferson who denounced flag burning as a crime.

I love that phrase “overwhelming constitutional evidence to the contrary.” What exactly is “constitutional evidence”? I have no idea; I doubt Brady does either. And that last bit about Madison and Jefferson is utter nonsense. Neither of them ever said anything at all about flag burning. Brady has been making this claim for two decades now and it’s still as false as the first day he said it. Phillip Taylor details what those two men said about the subject:

The only flag-related quote attributed to Jefferson came during his tenure as Secretary of State under President George Washington. Faced with British impressment of American sailors, Jefferson instructed American consuls to not accept the “usurpation of our flag.”

Jefferson, in short, said the United States would not accept a foreign country seizing American ships and pulling down the U.S. flag. And he, too, said the United States condemned foreign countries that flew the American flag — a sign of neutrality at the time — over their trade ships.

As for Madison, letters reveal three cases where the architect of the First Amendment mentions the “sovereignty” of the U.S. flag.

In October 1800, an Algerian ship forced an American ship, George Washington, to replace its flag with the Algerian colors. Madison, as Jefferson’s secretary of state, denounced the action.

In 1802, in a letter to then-Pennsylvania Gov. Thomas McKean, Madison said an act of flag defacement in Philadelphia could be prosecuted. The flag, flying over a government-owned building, was government, not personal, property.

Lastly, Madison denounced a June 22, 1807, incident in which the British ship Leonard fired upon the American Chesapeake and ordered it to haul down the flag. Madison, in a letter to James Monroe, wrote that ” the indignity offered to the sovereignty and flag of the nation demands … an honorable reparation … [such as] an entire abolition of impressments from vessels under the flag of the United States.”

Such comments only addressed the flag flown in its official capacity, such as maritime use or over a government building. Neither Jefferson nor Madison ever commented on whether a citizen had a right to purchase a U.S. flag and then burn it or rip it apart in protest.

Now here’s the funny part. After inaccurately citing Jefferson and Madison on flag burning, in the very next paragraph he claims that there is no such thing as separation of church and state and explicitly denies the validity of the language they both used to describe the religion clauses of the First Amendment:

Burning our flag is not speech; it is a form of expression some say is protected by our Constitution. “Freedom of Expression” is right up there with “Wall of Separation” as constitutional frauds. The Constitution protects three forms of expression: the spoken word, the written word and peaceful assembly. Flag burning is none of these.

So the views of Jefferson and Madison are absolutely dispositive when he inaccurately claims they’re on his side on flag burning, but the wall of separation between church and state, which they actually did support is a “constitutional fraud.” The laws of logic must be really weird on Planet Wingnuttia.

The legalized desecration of the symbol of the Constitution symbolizes the ongoing desecration of our Constitution. The examples are legion – judges who believe that the Constitution is what they say it is. I can think of only a few societal disasters that are not the result of judicial insanity; think of the assault on prayer, religion, the Decalogue, pornography, Obamacare, coddling of criminals, etc. ad infinitum.

“Judges sometimes allow things I don’t like, so judges are evil and insane.” Such a compelling argument.

As an aside, I spoke to Sen. Obama on the constitutional issues of legalized flag burning. I had with me the law professor who taught Mr. Obama constitutional law at Harvard. We hoped to get Obama on our side, although he had spoken against the right of the people to protect their flag. There were no teleprompters present, and he had absolutely nothing to offer in defense of his position. In fact, the only thing I remember him saying was to request a picture and compliment us on our arguments. He then voted against the flag amendment. After this meeting, I wondered how this man could have become the celebrity he was.

I’m very curious to know who that con law prof was. Lawrence Tribe was Obama’s con law prof and he certainly is not in favor of flag burning being illegal. It’s possible that he took another con law course that was not taught by Tribe, but I don’t know of any law prof at Harvard who thinks flag burning should be illegal. As for Obama having nothing to say, that certainly wouldn’t surprise me. He was probably struggling to keep a straight face while thinking, “Is this guy serious?”

Comments

Most commonly flags were used to determine the center of a military regiment and the nationality of a ship. “Strike your colors” (surrender), the tendency of flag bearers to die in large numbers during military engagements, etc. Capturing an enemy regiment’s colors was a great honor (dishonor).

To be “desecrated”, something has to be sacred in the first place. And, I’m sorry, but flags aren’t. Neither is the Constitution.

It’s a figure of speech, perhaps, but these wingnuts’ problem is that they take it literally. There’s something very wrong and dangerous about seeing your flag and government and country as holy. It means that they are already perfect and can’t be changed to improve them, and that everything about them and what they do is moral and right.

The funny thing is that the Flag Code specifically requires burning as the method of disposing of an old flag. It also specifically forbids using it as clothing, something often done by such wingnut luminaries as David Barton, Sarah Palin, etc.

The legalized desecration of the symbol of the Constitution symbolizes the ongoing desecration of our Constitution.

I’m sorry, but can we once, just once get a wingnut whose prose isn’t so stilted? I mean, seriously, that’s noticeably ugly phrasing in a column that’s full of ugly phrasing and wordplay that aspires to approach workmanlike.

The examples are legion – judges who believe that the Constitution is what they say it is. I can think of only a few societal disasters that are not the result of judicial insanity; think of the assault on prayer, religion, the Decalogue, pornography, Obamacare, coddling of criminals, etc. ad infinitum.

Speaking of stilted prose…

So he says the examples of Constitutional desecration are legion, then he offers exactly one example. He follows this up with a laundry list of talking points that are “disasters,” but if you read it from “the assault on…” he’s claiming that there’s an assault on prayer, religion, the Ten Commandments (which are, somehow, three separate things), and also porn and Obamacare. I assume that means he’s actually taking a principled stance and saying that pornography is a form of protected speech, Obamacare is the law of the land, and that continued attacks against either are useless or, worse, unconstitutional. But then he takes an asshole turn by going after people who are assaulting “the coddling of criminals,” by which I suppose he means that he wants to repeal the Constitutional protections against cruel and unusual punishment.

Ah, well, I suppose everyone has their blind spots.

Meanwhile, I’m pretty sure that tossing “etc. ad infinitum” in at the end there is redundant. Also, too, it’s repetitive.

Neil Rickert – Well it’s really quite simple.
It’s OK for the Post Office to put on black lines when cancelling a stamp of the HOLY FLAGG, ’cause putting a holy flag on a stamp is ILLEGAL cause the holy flag DOESN’T HavE GOLD BRAiD, and besides licking the back washes off the DECALOGUE hand-written on THE BaCK of the HOLY FlaG STAMP BY JESUS HIMSELF!!!
QED
Dingo

The banner ad that the intertubes thought I would be really really interested in was for the 10th Annual Conference on Railway Technology* .
Holy shit! The MOST BORING conference outside a conference on the Dewey Decimal System or Library of Congress subject headings.
Well of course Mr Intertubes, I’m JUST JONESING to go! SIGN ME UP & SIGN ME UP NOW!!!

@@
Dingo
——–
*(25-29th Nov. at the Sydney Convention and Conference Center, in case you wanting to attend)

The actual comments from Jefferson and Madison are illuminating, and it gives me pause… I wonder if part of the reason for the development of this fanatical cult of flag-worship is that the practical reasons for a flag are basically irrelevant in most people’s day-to-day lives these days. Once upon a time, what flag a given ship was flying was very much on the mind of many a common folk — whether it was the right flag or a phoney, whether that flag made the ship likely to be attacked, etc. Nowadays, for most people the flag IS just a symbol, and not a practical tool, so perhaps that is why the symbolic importance has been so magnified?

Once again, learning a little bit of fucking history might make people a lot less likely to go unhinged. But alas…

In reviewing the general’s selection of wingnut whines, I see that he’s an exemplar of the morality of sacredness. Where I part company with Haidt is not on the recognition of the disgust/sacredness domain of morality, but on whether its moral derivaties deserve genuine respect. IMO, the weaker liberal sensitivity to disgust and sacredness isn’t a shortcoming of the liberal moral palette. I think it’s an evolved advantage associated with a more scientifcally advanced, less brutally-tribal culture. It’s no accident that a man whose career has revolved around advancement within a warrior subculture would be more likely to have these more primitive sensibilities.

Wait, according to Ted Cruz, Harvard Law School is filled with avowed Marxists who want to overthrow the US government (as opposed to the rightwing nut jobs who want to overthrow the US government). How did he find one one who was against burning Jesus’s the American flag?